Think twice before you click send
The use of email has revolutionised the way that we do business. Communications can occur with an immediacy not before achieved but it is easy to forget how powerful email can be and that with immediacy comes the risk of insufficient thought occurring before an email is sent. Tone, wording and general lack of forethought when sending an email can lead to a lot of legal trouble and expense.
This was what happened in a recent unfair dismissal case involving a law firm (Lewis v Go To Court Franchising Pty Ltd T/A Go To Court Lawyers  FWC 4023), where the use of email inadvertently changed the performance management policy and an ill-considered response caused the sender’s sacking.
The terminated employee had been employed by a law firm with offices across Australia. The CEO of the firm, concerned about billings, sent out an email directing employees that they must submit their time recording at the end of each day. In the email, which was written in very strong terms, the CEO stated:
“There will, from this point forward, be no acceptable excuse for missing timesheets. Your 3rd formal warning will also be your termination notice. That is to say – 3 strikes and you’re out!”
He went on to end the email with:
“…those of you unwilling or unable to pull your own weight are, to put it simply, wasting your time and ours. Rest assured, the Lion will soon be catching up with any sick Zebras at the back of the herd…”
Several months later, the applicant was late in submitting his time for several days and the CEO sent him an email, parts of which read:
“It is a breach of your contract not to enter time daily.
What is the problem??????”
The employee, who was on sick leave at the time, did not react well to the tone of the CEO’s email and responded with his own intemperate and argumentative response, dismissing his failure to time record promptly, despite clear direction that he was to do so, as “minor” and raised a litany of complaints.
The CEO responded by email, terminating the employee saying, “it is quite apparent from your extensive comments that your continued employment with us is untenable.”
Unsurprisingly, the employee brought a claim for unfair dismissal.
Whilst the law firm tried to suggest that the reasons for dismissal were in fact performance related, the Fair Work Commission upheld the claim, relying on the content of the email exchanges as the reason for dismissal and awarding damages for unfair dismissal.
The Commission’s findings highlight the particular dangers of email correspondence between employees and management, with the following points raised:
- Altering contracts and policies
In addition to causing a great deal of angst, by saying that there would be ‘3 strikes and you’re out’, the CEO’s first email had the unintended effect of altering the employee’s contract of employment and the firm’s performance management policy in that it created the requirement to give three formal warnings if time sheets were not filed on time.
The CEO has not followed that policy in this case.
- Passionate emails
By expressing himself in emotive and passionate terms, the CEO provoked an emotive and passionate response, which inflamed the situation. Neither party gave sufficient time or thought to their responses.
However, even though the employee’s email “was combative, aggressive, demanding and self-congratulatory,” it was not “unprofessional or disrespectful” or deemed sufficient enough to destroy the employment relationship and could not be a valid reason for dismissal.
- No proper process
In responding so quickly, the CEO did not give adequate thought to proper process and the ability of the Managing Partner to deal with the issues was “taken out of [her] hands. This meant that she had no opportunity to put the performance concerns to the employee, receive his response and make a considered decision about whether disciplinary action was necessary.
- The CEO dodged a claim against him personally
The Commission expressed the view that the CEO had been lucky that the employee had not brought a claim for breach of the general protections under the Fair Work Act against him personally, as well as the firm.
It is unlawful to dismiss an employee because they raise a complaint against their employer and, unlike in the unfair dismissal jurisdiction, in a general protections claim, damages can be awarded with no upper limit on the amount and can include damages for pain and distress. Fines can be imposed on individuals as well as the business.
- Have a clear email policy in place and ensure that all people in the business know about it and comply with it.
- Make sure all persons in authority are aware of their obligations to employees under the Fair Work Act.
- Manage senior staff/owners – do not let loose cannons fire off emails without thought. Ensure that any performance issues are dealt with by the person designated to be in charge of HR.
- Avoid emotive language in emails to staff. Be aware that humour and “tone” of voice can be easily misinterpreted in an email and unlike a written statement, the wording can, and will be, revisited by the recipient such that it can have a lasting effect.
- Maintain formality. Treat email the same way you would if you were writing a letter.
- Never say something in an email that you would not say to an employee in person.
- Review any emails sent to ensure that the wording does not change any business policies and procedures.
- Take time to consider any responses from employees and when you do , do so without emotion. If necessary, wait to respond until you can view the email objectively, or have another person of seniority do so.
- If in doubt, do not hit “send.”
Otherwise, the simple, quick action of sending an email could result in very costly, long term issues.
This article was written by Senior Associate, Elizabeth Olsson.